All Things Family Law

Discussion of all things related to family law from an Indiana divorce attorney.

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Same-Sex "Parents" - Visitation and Parenting Time - Indiana Law

On October 31, 2013 the Court of Appeals decided an important case in Indiana holding that a person who is the non-biological, same-sex parent of a child has standing to seek a visitation order with the child.  In doing so the Court of Appeals challenges the legislature to review its definition of "parent" (see below) 

In reaching the holding the Court  of Appeals details the policy reasons and merits of allowing visitation to grandparents, opposite-sex stepparents, foster parents and third parties in general.  Summarizing its reasoning the Court stated:

"By recognizing a right to third-party visitation, this court has acknowledged that a child's interest in maintaining relationships with those who have acted in a parental capacity will sometimes trump a natural parent's right to direct the child's upbringing. Moreover, although the reasons our Supreme Court articulated in Worrell for denying standing to former foster parents are beyond dispute, the rationale for limiting third-party visitation to stepparents alone is less clear. It appears to us that the Court viewed a stepparent relationship as a strong indicator that a custodial and parental relationship exists. But surely custodial and parental relationships may exist with third parties other than stepparents. Indeed, the situation presented here is characterized by even stronger indicia of a custodial and parental relationship. This is so because the parties originally intended for the biological mother's partner to fulfill the role of the child's second parent and actively encouraged the development of a parental bond between the partner and the child."

Importantly, the Court explained that a same-sex partner is not automatically entitled to visitation:

"Thus, in the particular factual circumstances of this case, a partner who did not give birth to the child has standing to seek visitation with the child. This is not to say that a former domestic partner is automatically entitled to visitation in these circumstances—it must still be established that visitation is in the child's best interests. We therefore reverse the trial court's conclusion that Partner lacked standing to seek visitation with Child and remand with instructions to reconsider Partner's request for visitation under the standard set forth in our third-party visitation cases."

So, while a same-sex partner may have visitation, Indiana has not held that they are entitled to visitation per the Indiana Parenting Time Guidelines. Yet. 

Finally, one of most interesting parts of the opinion is where the Court of Appeals urges the legislature to address this issue:

"Since King, the status of the law surrounding a lesbian partner's right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain.[5] When this court decided In re A.B., we solicited guidance from the General Assembly on this issue. In the years that have passed since then, none has been forthcoming. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. We feel the vacuum of such guidance even more acutely now than we did eight years ago, when King was decided. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived."

 

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